Justice for Border Crossing Peoples David Watkins University of Dayton, [email protected]

University of Dayton eCommons Political Science Faculty Publications Department of Political Science 11-15-2015 Justice for Border Crossing Peoples David Watkins University of Dayton, [email protected] Follow this and additional works at: http://ecommons.udayton.edu/pol_fac_pub Part of the American Politics Commons, Comparative Politics Commons, International Relations Commons, Models and Methods Commons, Other Political Science Commons, Political Theory Commons, and the Public Affairs, Public Policy and Public Administration Commons eCommons Citation Watkins, David, "Justice for Border Crossing Peoples" (2015). Political Science Faculty Publications. Paper 51. http://ecommons.udayton.edu/pol_fac_pub/51 This Book Chapter is brought to you for free and open access by the Department of Political Science at eCommons. It has been accepted for inclusion in Political Science Faculty Publications by an authorized administrator of eCommons. For more information, please contact [email protected], [email protected]. Justice for Border-Crossing Peoples David Watkins This is the accepted manuscript for a chapter of the same title published in The Meaning of Citizenship, Richard Marback and Marc Kruman, eds. Detroit, MI: Wayne State University Press, 2015. The entire volume is available for purchase from the publisher: http://www.wsupress.wayne.edu/books/detail/meaning-citizenship Introduction Citizenship, as a legal and normative concept, defines the condition of full membership in a sovereign, self-governing national community. Understood in these terms, citizenship produces remainders: individuals, groups, and ways of life that do not fit in the legal-normative model of equal citizenship in a single, unified national community. Many of these remainders are produced by the ancient and venerable practice of human migration, a social practice often found at or near the center of human societies and cultures for many thousands of years. States have claimed a right to exercise control of border-crossing activities as central to their understanding of their sovereign power, and the logic of the status of citizenship only bolsters that claim. If the state is to treat her citizens as full, equal rights-holding members of society, it must keep track of who those citizens are; migration must be tracked, and noncitizens permitted to be present in the polity’s territory must be marked with a status of their own, in part to distinguish them from citizens. For tourists, business travelers, and many other border crossers, this arrangement, at least when functioning reasonably well, raises few concerns. Many countries provide a status for such visitors consistent with some of the rights of citizenship—protection from crime, due process, access to infrastructure, and so on—that are necessary for their purposes, but not those elements 2 of citizenship that seem irrelevant or inappropriate for them (such as the right to vote or access to social welfare programs). But for a large group of border crossers, the norms of citizenship present a greater challenge. The secondary statuses available to them and their access to borders do not obviously fulfill the requirements of justice. While they are not the only group of people for whom citizenship as membership produces legal and normative remainders, I will focus here on a group I call “border-crossing peoples.” I define border-crossing peoples as a distinct group whose historical cultural, religious, and socioeconomic way of life requires regular and routine access to the crossing of an international border. Border-crossing peoples generally have a long- standing history of participating in the cultural/social/economic pattern that necessitates that border crossing; sometimes predating the existence of the border itself, or predating any significant efforts to control or restrict the border. Just as the control of borders is presumably a tool a national community uses to maintain and shape its identity, the crossing of the border is crucial to the shaped identities of border-crossing peoples. In the now-vast literature on migrants and migration, in which migrants are divided into a variety of analytic categories, this general category has not (to my knowledge) been identified. The most similar analytic category I’m aware of is “border-straddling nations,” a category identified recently by Margaret Moore (2013). My conception of “border-crossing peoples” differs from Moore’s “border-straddling nations” in two significant ways. First, I do not restrict this category to groups that constitute a distinct nation, with all that that entails. Some border-crossing peoples may be a small slice of a nation; others may be identified as a distinct group by a set of markers—perhaps ethnic, regional, or religious—that fall short of approaching the status of “nationhood.” Second, a border-crossing people need not “straddle” the border territorially. One quintessential example of a border- crossing people, whose border-crossing rights are discussed in detail below, is the Kickapoo 3 tribe. Their primary territorial locations do not straddle the US/Mexico border—their reservations in Oklahoma and Kansas and their settlement in Nacimiento, Mexico, are all several hours’ travel from the US/Mexico border, and yet they are properly characterized as a border- crossing people because of the historical nature of the social, cultural, familial, and economic ties between the Kickapoo settlements in Mexico and the United States. Whatever the reason border- crossing peoples has been ignored in the literature on immigration, it is unfortunate, as they have a distinct claim for accommodation. Indeed, much of the literature on citizenship and migration focuses on one-way, permanent migration, not on the kind of back-and-forth border crossing that characterize the lives of border-crossing peoples (Hampshire 2013). At the same time, the vast majority of the literature on migration focuses on the on question of the scope and limits of justifiable migration policies for abstract “liberal-democratic states” or “national communities” with little attention to the particular histories, practices, sins, or commitments of actually existing states.1 This chapter attempts to overcome these two shortcomings in the existing literature by developing and exploring an analytical resource, in the form of a normative-legal concept, to articulate, justify, and defend claims of border-crossing rights for border-crossing peoples. My aim here is to go beyond standard approaches to thinking about the boundaries of citizenship in order to solve the problem of one of citizenship’s remainders. In a sense, I see the argument presented here as a way of supplementing citizenship in theory and practice, by stepping outside of standard citizenship thinking and drawing from resources in property and international law to provide a theory of the rights of border-crossing peoples. One approach to the remainders of citizenship is the “semi-citizenship” approach advocated by Elizabeth Cohen (2009), or what Rogers Smith (2015) in this volume calls “appropriately differentiated 1 Exceptions to this trend include Smith (2008), Exdell (2009), and Blake (2013). 4 citizenship.” This approach seeks to recognize the universality and apparent unavoidability of the practice of granting semicitizenship status to some citizens, and investigates the plausibility of different approaches to partial citizenship statuses (Cohen 2009). The argument fits within this approach, as I seek to establish why some members of particular groups might have a justified demand for a specific set of (partial) citizenship rights in a country other than their primary citizenship home. This may be a demand for full dual citizenship, or may be limited to a demand for a much less comprehensive partial citizenship narrowly construed as a right of passage to the second state. The first section of this chapter considers what it might mean to deny a would-be border- crosser passage in the most general and abstract terms: is such a refusal best understood as an act of coercion or an act of prevention? Even if we assume it is (merely) an act of prevention, it still requires justification, and the way in which we define the right to exclude will shape the contours and boundaries of that right. The second section of this chapter considers the national territorial rights thesis as a foundation for the justified right to exclude. This approach relies, crucially, on an analogy with an individual’s right to exclude others from her private property. In the third section, I argue David Miller has ignored an important dimension of this analogy. If (individual) private property rights are appropriately analogized to the act of migrant exclusion by national communities, we must consider other dimensions of property law that might press in the other policy direction, identifying cases where migrant inclusion is demanded. The law of easements suggests one such way. In particular, I will consider the ways in which easements by prescription and easements by necessity can come to be created in individual property arrangements. In the fourth section I’ll discuss actually existing arrangements for border-crossing rules that suggest that something akin to border-crossing easements do exist, incompletely, in existing law and 5 custom. In the fifth section, I will use two cases of historically grounded patterns and cultures of labor migration—from Mexico to the United States and Lesotho to South Africa—to argue that the

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